Search and Seizure and Plots – A Few Tips For Writers (Part 2)

Last week, I covered the basics of search and seizure, the warrant requirement, and limitations imposed by the 4th Amendment. Today’s article explores warrantless search and seizures with examples to consider when developing your plot.

As fate would have it this week, our neighbor in Maui has been flying a drone about 30 feet from our second floor lanai – an annoying and intrusive action. While a drone hovering in a backyard window may not be any different from a telescope used in a downtown high-rise, it still raises issues of invasion of privacy, trespassing, stalking, harassment, and voyeurism. Especially since in our neighbor’s case, his hobby is photography and most drones are equipped with cameras.

But this is not an article about the sketchy laws governing drones and right of privacy. We are here to discuss warrantless search and seizure, right? Well, if the drone operator had been the police – would snapping photos constitute a search that required a warrant? If not, when is a search and seizure considered warrantless?

To answer these questions, it makes sense to briefly review again the warrant requirements for a search and seizure (see Part 1). A warrant is required when there is a legitimate expectation of privacy in the place searched or the item seized. If not, then no warrant is needed. Courts ask two questions when considering if a legitimate expectation of privacy exist.

Does the person have an expectation of privacy with the place searched or evidence taken?

Was that person’s expectation reasonable in society’s view?

If either answer is “no,” then no warrant is needed.

For example, there is no expectation of privacy with items discarded, like the DNA on a cigarette butt. There is no expectation of privacy in the car your protagonist is riding as a passenger. There is no expectation of privacy in a house in which your protagonist is a guest. There is no expectation of privacy with activities conducted in a field or backyard that is visible from the road. There is no expectation of privacy when a security guard randomly searches a purse because security guards are not government officials subject to 4th Amendment search and seizure limitations.

But having no legitimate expectation of privacy is not the only time police may perform warrantless search and seizures. Police may also search and seize without a warrant if a warrant exception applies or other circumstances justify (which usually revolve around ideas of reasonableness and logical criminal suspicion).

Here are few examples to help prime your fiction and make it realistic in the process. These are only general scenarios. The circumstances and what you choose to dramatize will depend on your characters and plot. For example, maybe you want the police to violate your character’s 4th Amendment rights and uncover pirated DVDs through an illegal search. Or maybe you want your protagonist to hide crystal meth under the front seat that is eventually discovered through a legal search and seizure. As with any plot, you are in control, or at least your characters let you think you are.

Consent

Warrantless searches can be legally justified if the person in control of the property agrees to it. If your protagonist voluntarily allows police to search her home or car, she has consented and a warrant is not necessary. Anything seized is admissible evidence and can be used against her at trial. Police are not required to warn her she has the right to refuse consent to a search. But police cannot coerce or trick her into agreeing, if so the consent does not validate the search. See Part 1 for the ramifications of an illegal search and violations of 4th Amendment rights.

If your character is stopped for a routine traffic violation and he consents to a search of his car, the gun found in the trunk is considered admissible evidence obtained through a legal search. Prior to his consent, he had an expectation of privacy and a search would have required a warrant. After his consent, the expectation was lost.

If your character has a roommate who consents to their apartment being searched, the police can search the roommate’s bedroom, but not your character’s bedroom since an expectation of privacy exists with a person’s bedroom (even though your mother may not have abided by such an expectation when you were young). Your protagonist’s landlord cannot give consent for police to search her leased property. Nor can your protagonist’s employer consent to a search of her employee locker, but company areas like her desk and work area are fair game.

The general rule with a hotel room is a warrant is needed to search it. Unless, of course, your character consents or there are emergency circumstances that justify a warrantless search (see below).

In Plain View

This exception allows police to search without a warrant if they see criminal activity or evidence like a weapon from a legitimate vantage point. For example, if the police have a view from the street of your character’s backyard, living room, or car dashboard and see blocks of C-4 explosive and a bomb, no warrant is needed to search and seize the contraband. Police cannot alter that normal vantage point, so no using a ladder, tree, or drone to see over a high hedge or into a second story window (where a person would have a legitimate expectation of privacy).

Likewise, if the police have a legitimate reason to be inside a house, they can seize contraband in plain view. For example, say they have a warrant to search a wine cellar for a crystal meth lab or enter a house to stop domestic abuse. On the way to that wine cellar or living room where the domestic violence is occurring, they see a gun on the entry table in plain view. Police can seize the gun and search the house without a warrant. Whenever evidence found in plain view raises concerns of safety, police can always search without a warrant. But if the police illegally enter a house and find contraband in plain view, the police cannot seize it because the plain view exception does not apply.

Sometimes officers wanting to get incriminating evidence admitted at trial abuse the plain view exception. Say they had a reasonable suspicion a suspect was involved in criminal activity so they stop-n-frisk the suspect. Under the stop-n-frisk exception (see below), the pat-down is only for weapons to ensure the officer’s safety or objects an officer can tell from a plain feel are contraband. A bag of soft cocaine is not a gun, nor is it readily apparent from a plain feel it is contraband so the evidence may not be admissible. But, if the officer testifies the suspect “dropped” the drugs prior to the stop, then the plain view exception would apply. My criminal lawyer friends call these a “dropsy” case.

Incident to arrest

When a person is lawfully arrested, police do not need a warrant to search the person or the immediate surroundings (the area within reach of the person arrested) to ensure safety or prevent the destruction of evidence. The most common search under this scenario is for a weapon. If your protagonist is arrested at home, police can take visual inspection of the surrounding area for an accomplice (if they have reason to believe one is there) or to ensure safety. So they might search a bedroom or closet for your character’s gun-toting partner, but they cannot open a desk drawer because an accomplice cannot hide in a drawer.

If your protagonist is arrested outside the house, police cannot search inside the house without a warrant. One trick police might use to search inside the house without a warrant is to offer the arrested suspect a chance to return to the house before they head to the police station – maybe to take care of a dog, or change their clothes. If your protagonist accepts, police can then search the house when they accompany you for safety reasons, or seize evidence in plain view.

If your protagonist is stopped at a roadside checkpoint or on a highway for erratic driving, then arrested for driving while intoxicated, the police can search the protagonist and the car but only the immediate area around the protagonist, like the glove box or under the seat but not the trunk. A search would also not extend to a phone, unless emergency circumstances justified it.

Emergencies and hot pursuits

When extreme circumstances suggest someone is in danger, a crime is occurring, evidence is being destroyed, or a suspect is fleeing, police can dispense with the 4th Amendment’s warrant requirement. For example, if your protagonist has been arrested at home for growing pot and downstairs the son is burning evidence in the basement furnace, they can search the basement without a warrant. Or if police hear gunshots and screams, there is no time for a warrant. The exigent circumstances demand immediate action. Likewise, if police chase your pot-growing protagonist onto private property, they can follow without a warrant.

Stop-n-frisks

This warrantless search exception is designed to protect officers from hidden weapons. If police have reasonable suspicion your character is committing a crime in a public place, they can stop your character and search without a warrant for weapons or objects an officer can tell from a plain feel are contraband.

But a bag of crystal meth the character had tucked inside his coat does not feel like a weapon, nor is it readily apparent from a plain feel it is contraband. The drug bag cannot be legally seized. Be aware that police usually know what a judge needs to hear to uphold a seizure and admit the evidence in court. So regardless of whether they could tell from a plain feel the bag they seized was crystal meth, they will testify that they “felt a packet of hard nuggets that felt like crystal meth and seized it” to ensure the evidence is deemed admissible.

Good faith

This exception is to protect police who have complied with the process of obtaining a warrant that was later declared invalid for circumstances not under their control. As long as the police did not deceive a magistrate to secure the warrant, the search will still be considered reasonable under the 4th Amendment and any evidence seized admissible.

The above are just a few examples of many warrantless search and seizures scenarios. If you have specific questions about a search and seizure in your plot, let us know. We are happy to help.

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